Safety Legislation Update

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Safety Legislation Update
Issue 70
February 2014
Authors:
Wayne Murphy CMIOSH
Senior Risk Analyst
RSSB
Block 2, Angel Square
1 Torrens Street
London EC1V 1NY
020 3142 54942
Wayne.murphy@rssb.co.uk
Sarah L O’Connor
Team Organiser
RSSB
Block 2, Angel Square
1 Torrens Street
London EC1V 1NY
020 3142 5477
Sarah.l.OConnor@rssb.co.uk
Railway Safety Legislation Update; No.70; February 2014
1
Foreword
This Safety Legislation Update has been compiled by RSSB following consideration by the
Railway Safety Legislation Committee. Its aim is to identify emerging and revised health and
safety legislation and supporting documents, which may affect the members of the railway
industry. The update is not a definitive list of legislation and only represents the knowledge
available at the time of going to print. The update is revised quarterly. No representations
are made as to the accuracy and completeness of the information provided.
How to use this update
The Legislation implementation and update status table
This provides details on the proposed implementation dates of the updated/new legislation
contained in this update together with a column showing whether the entry has been
updated or is new to this issue.
Entries and updates

New entries to the update are identified as such in their titles

Significant changes to entries since the previous issue have been identified with a 15%
shading.

Each entry is dated at the end with the month that the entry was last updated.

Entries in the update are deleted once they become law.
Railway Safety Legislation Committee – Terms of Reference
The purposes of the Railway Safety Legislation Committee (RSLC) are to:

Alert RSSB members to actual and potential changes to safety related legislation likely to
impact on their operations or business; and

Seek to influence and respond in such a way as to ensure that RSSB member interests
are recognised, promoted and protected.
The RSLC will:

Disseminate early indications and subsequent information regarding legislative proposals
concerning operational or occupational safety or the management/ reporting thereof.
This includes European, UK national and rail industry specific legislation.

Identify and consider the implications of such proposals for the UK rail industry
Inform and/or review RSSB activity in promoting/protecting its members’ interests in
seeking to influence and/or responding to such proposals.1 This may include preparing
and making available to members template responses to formal consultations.

Where appropriate set up working parties or authorise the engagement of specialists to
assist in meeting the above objectives.

Approve the text of the quarterly Safety Legislation Update.
1. The position adopted by RSSB will be in the interests of overall safety in the industry but should not be seen as
necessarily representing the views of all individual members
Railway Safety Legislation Update; No.70; February 2014
2
Contents
Foreword
2
How to use this update
2
Railway Safety Legislation Committee – Terms of Reference
2
Contents
3
Abbreviations and acronyms
4
Related websites
5
Legislation Implementation and update status
6
Section 1 - European Legislation (General)
7
Electro-Magnetic Fields Directive (2004/40/EC amended by 2008/46/EC)
Section 2 - EU Legislation (Railways)
8
10
Safety Performance Working Group – Common Safety Indicators & Common Safety Targets 11
European Regulation on the Common Safety Methods – Risk Evaluation & Assessment
13
European Regulation on the Common Safety Methods – Monitoring & Supervision
17
The Fourth Railway Package
19
European Directive on the certification of train drivers (Directive 2007/59/EC) - Amendments
to Annexes on general professional knowledge and medical and licence requirements
22
Section 3 - UK Legislation (General)
23
CD241 – Proposals to review HSE’s Approved Codes of Practice (ACOPs)
24
CD243 – Proposals to simplify and clarify Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 1995 (RIDDOR) reporting requirements.
30
Enforcement procedures against drink drivers and other offences
31
Section 4 - UK Legislation (Railways)
Level crossing legislation
Section 5 - Other railway related consultations
ORR’s Approach to Transparency
Section 5 – News
33
34
36
37
39
News
40
Key Diary Dates
42
Court Cases
42
Railway Safety Legislation Update; No.70; February 2014
3
Abbreviations and acronyms
ACOP
Approved Code of Practice
ACSH
Advisory Committee on Safety and Health at Work
ATOC
Association of Train Operating Companies
CER
Community of European Railways
CSI
Common Safety Indicator
CSM
Common Safety Method
CST
Common Safety Target
DfT
Department for Transport
ECM
Entity in Charge of Maintenance
EMF
Electro-Magnetic Fields
ERA
European Railway Agency
HSE
Health and Safety Executive
HSWA
Health & Safety at Work Act
IAB
Impact Assessment Board
ICNIRP
International Commission on Non-Ionising Radiation Protection
IM
Infrastructure Manager
MoJ
Ministry of Justice
NSA
National Safety Authority
NRV
National Reference Value
NTR
National Technical Rule
ORR
Office of Rail Regulation
RE&A
Risk Evaluation and Assessment
RIDDOR
Reporting of injuries, diseases and dangerous occurrences Regulations 1995
RISC
Railway Interoperability & Safety Committee
ROGS
Railways & Other Guided Transport Systems
RSD
Railway Safety Directive
RSSB
Rail Safety and Standards Board
RU
Railway Undertaking
SPG
Safety Policy Group
SPWG
Safety Performance Working Group
TSI
Technical Specification for Interoperability
Railway Safety Legislation Update; No.70; February 2014
4
Related websites
ATOC
www.atoc.org
BIS
https://www.gov.uk/government/organisations/depart
ment-for-business-innovation-skills
DCLG
https://www.gov.uk/government/organisations/depart
ment-for-communities-and-local-government
DEFRA
https://www.gov.uk/government/organisations/depart
ment-for-environment-food-rural-affairs
DfT
https://www.gov.uk/government/organisations/depart
ment-for-transport
European Commission
http://ec.europa.eu/index_en.htm
ERA
www.era.europa.eu/Pages/Home.aspx
Government News Network
http://www.knowledgeview.co.uk/node/10
HSE
www.hse.gov.uk
Law Commission
http://www.justice.gov.uk/lawcommission/index.htm
Network Rail
www.networkrail.co.uk
ORR
http://orr.gov.uk/
RAIB
www.raib.gov.uk
RSSB
www.rssb.co.uk
Scottish Law Commission
http://www.scotlawcom.gov.uk
UIC
www.uic.org/
Ministry of Justice
https://consult.justice.gov.uk/
Railway Safety Legislation Update; No.70; February 2014
5
Legislation Implementation and update status
Legislation
Implementation date Updated in
(where known)
this issue?
EUROPEAN LEGISLATION (GENERAL)
Electro-Magnetic Fields Directive
October 2013
EUROPEAN LEGISLATION (RAILWAYS)
Safety Performance Working Group – Common Safety Indicators &
Common Safety Targets
2nd set of CSTs
introduced Apr 2011

European Regulation on the Common Safety Methods
– Risk Assessment & Evaluation
July 2012 & May
2015

European Regulation on the Common Safety Methods
– Conformity Assessment
January 2011

European Regulation on the Common Safety Methods
– Monitoring & Supervision
June 2013

The Fourth Railway Package
Unknown
European Directive on the certification of train drivers (Directive
2007/59/EC) - Amendments to Annexes on general professional
knowledge and medical and licence requirements
Unknown


UK LEGISLATION (GENERAL)
CD241 – Proposals to review HSE’s Approved Codes of Practice
By the end of 2013
CD243 – Proposals to simplify and clarify the Reporting of Injuries,
Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).
October 2013
Enforcement procedures against drink drivers and other offences
2014


UK LEGISLATION (RAILWAYS)
Level crossing legislation
September 2013

Unknown

OTHER RAILWAY RELATED CONSULTATIONS
ORR’s Approach to Transparency
Railway Safety Legislation Update; No.70; February 2014
6
Section 1 - European Legislation (General)
Railway Safety Legislation Update; No.70; February 2014
7
Electro-Magnetic Fields Directive (2004/40/EC amended by
2008/46/EC)
BACKGROUND
This is the third Directive of the suite of physical agents’ Directives. Directive 2004/40/EC
was published in 2004, but was never fully transposed by member states (including the UK)
on the advice of the Commission.
On 29 June 2013, the European Commission repealed Directive 2004/40/EC and published
Directive 2013/35/EU on the minimum health and safety requirements regarding the
exposure of workers to the risks arising from physical agents (electromagnetic fields) (20th
individual Directive within the meaning of Article 13(1) of Directive 89/391/EEC). The
published
document
is
available
here:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:179:0001:0021:EN:PDF.
Member states have been given 3 years up to 1st July 2016 to transpose the Directive into
national law.
MAIN PROVISIONS
Provisions cover risk assessments; control of exposure (with laid down action values and
exposure limit values); health surveillance and information, instruction and training.
The Directive addresses the protection of workers exposed to electromagnetic fields and the
carrying out of effective and efficient risk assessments, proportional to the situation
encountered at the workplace.
It also defines a protection system that graduates the level of risk in a simple and easily
understandable way and commits the European Commission to producing practical
guidelines to assist employers in meeting their obligations under the Directive.
The Directive contains technical annexes setting out the exposure limit values. Member
States have the option of maintaining or adopting more favourable provisions for the
protection of workers, in particular the fixing of lower values for the “action levels” or the
“exposure limit values” for electromagnetic fields.
CURRENT STATUS
HSE, on behalf of the UK, will continue working with stakeholders to ensure that all
legislative requirements are addressed. They anticipate that a significant number of
requirements will already be incorporated into UK law through the Management of Health
and Safety at Work Regulations 1999, keeping the introduction of any new legislative areas
to a minimum.
The EU will publish a Practical Guide early in 2016, supporting the Directive. HSE are
working with stakeholders to ensure any practical guidance required to support UK
implementation will also be available.
RAILWAY INDUSTRY POSITION
RSSB and LUL representatives will continue to participate in the transposition process,
development of UK guidance and attend industry meetings to confirm the railway’s position
that the legislation should be proportionate to the risk.
The Vehicle Train Energy System Interface Committee has indicated that further research
may be needed to update this report in the light of the revised Directive. Therefore a new a
new Research and Development project (T1051 – Investigation into the effects of applying
the Physical Agents (EMF) Directive in the UK railway system) is in development.
Railway Safety Legislation Update; No.70; February 2014
8
For more information please contact the project technical lead – David Knights;
david.knights@rssb.co.uk.
OTHER INFORMATION
An RSSB report into the implications of the original Directive is available at:
http://www.rssb.co.uk/SiteCollectionDocuments/pdf/reports/research/T515_rpt_final.pdf
DATE UPDATED:
October 2013
Railway Safety Legislation Update; No.70; February 2014
9
Section 2 - EU Legislation (Railways)
Railway Safety Legislation Update; No.70; February 2014
10
Safety Performance Working Group – Common Safety Indicators &
Common Safety Targets
BACKGROUND
The Railway Safety Directive (2004/49/EC) requires that ERA sets Common Safety Targets
(CSTs) for each member state. Member states are required to provide Common Safety
Indicators (CSIs) data to ERA on an annual basis (as per Annex 1 of the Safety Directive).
MAIN PROVISIONS

Common Safety Indicators (CSIs)
These are designed to produce agreed methods to calculate safety levels in every
member state so that safety can be monitored during the introduction of all other
European safety measures. As with Common Safety Targets, the aim of CSIs is to make
sure that levels of safety remain consistent, or improve during the changes that are being
made.
The agreed indicators are collected by the national safety authorities and delivered to the
Agency. They are published on the Agency web site and amongst other things, allow
accurate reporting for member states to show that they have achieved their Common
Safety Targets (CSTs).
The CSIs are primarily used to assess performance against the CSTs and NRVs,
although additional information is collected, for example on accident precursors and
accident costs.
The regulation implementing the CSI directive in the UK came into force on 26 August
2011.

Common Safety Targets(CSTs)
These are intended to ensure that safety performance is not reduced in any Member
State during the period in which changes required by other directives are being made.
Given the considerable variation in safety performance across the EU at present single
CSTs would not enable individual member states’ performance to be measured so
National Reference Values (NRV) were introduced. NRVs are set at individual member
state level and member state safety performance will be assessed annually against
them. In future the CSTs may be used to set pan-European targets so as to harmonise
safety performance in order to support further market liberalisation.
NRVs and CSTs are expressed in terms of fatalities and weighted serious injuries
normalised by a measure of exposure, such as train km, and cover six areas:
passengers, workforce, unauthorised persons, level crossing users, others, and whole
society.
The second set of CSTs/NRVs were established by an EC decision of 23 April 2012.
CURRENT STATUS
The CSI and CST working groups merged to form a combined working group called the
Safety Performance Working Party (SPWP). The SPWP met for the final time on 12
September 2013.
Railway Safety Legislation Update; No.70; February 2014
11
RAILWAY INDUSTRY POSITION
The railway industry is responsible for providing CSIs to the ORR by the end of June each
year. RSSB co-ordinates the collation of CSI data and reports this direct to ORR: there is no
longer a requirement for transport operators to include CSI data in the Annual Safety
Reports they submit to ORR. ORR submitted the national CSI data at the end of September
2013 as part of its Annual Safety Report to ERA.
The industry’s Annual Safety Performance Report 2012/13, published by RSSB, which can
be found here: http://www.rssb.co.uk/SPR/REPORTS/Pages/default.aspx presents a
provisional assessment of GB performance against the NRVs/CSTs for 2012 and concludes
that safety performance in all categories was acceptable.
Please pass suggestions for changes to Annex 1 to George Bearfield
george.bearfield@rssb.co.uk ; CER Deputy, or Peter Moran peter.moran@orr.gsi.gov.uk;
UK rail representative. So they can be logged with ERA for consideration by Safety
Performance Working Party; or
Please pass suggestions for changes to the method of assessing performance against
CSTs/NRVs to Marcus Dacre marcus.dacre@rssb.co.uk for consideration by the CST Task
Force.
OTHER INFORMATION
A revised Annex 1 to the Railway Safety Directive has been agreed by the European
Commission and is expected to be published in the Official Journal later this year. This
revision to the Railway Safety Directive will require UK transposition and a further
amendment to the Railways and Other Guided Transport Systems (Safety) Regulations
2006.
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
12
European Regulation on the Common Safety Methods – Risk
Evaluation & Assessment
BACKGROUND
The Railway Safety Directive (2004/49/EC) required that a series of Common Safety
Methods (CSMs) were developed by the ERA to describe how safety levels, achievement of
safety targets and compliance with other safety requirements are assessed in the different
member states.

Original Regulation
The CSM on Risk Evaluation & Assessment (CSM REA) was developed according to
Article 6(3)(a) of Directive 2004/49/EC (Safety Directive). The Regulation has applied
since 1 July 2012 to all significant changes to the railway system – ‘technical’
(engineering), operational and organisational. The Regulation can be found here:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:108:0004:0019:EN:PDF

Revised Regulation
Following the work of the CSM REA working group and its task forces, in January 2013,
a revised version of the Regulation was adopted by the Railway Interoperability & Safety
Committee (RISC). The revised version was published in the Official Journal of the
European Union on 3 May 2013 and will apply from 1 May 2015. The principal
amendments relate to the recognition and accreditation of Assessment Bodies. The
revised Regulation can be found here: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:121:0008:0025:EN:PDF
The ORR guidance will be amended in due course.
RAILWAY INDUSTRY POSITION
In October 2013 RSSB published six guidance documents on the application of the CSM
REA –

Planning an application of the CSM on REA

System definition

Hazard identification and classification

Independent Assessment

Risk evaluation and acceptance

Safety requirements & hazard management
They can be found here http://www.rssb.co.uk/ManagementOfEngineeringChange/pages/default.aspx
In June 2014 all these documents will be published as Rail Industry Guidance Notes in the
Railway Group Standard Catalogue.
The Office of Rail Regulation has published Guidance on how to apply the CSM REA, and in
particular the use of the three risk acceptance principles, this document can be found here http://www.rail-reg.gov.uk/upload/pdf/common_safety_method_guidance.pdf
Railway Safety Legislation Update; No.70; February 2014
13
In December 2013 ORR published their “Policy statement on the relationship between the
CSM for Risk Evaluation and Assessment and other risk assessment requirements”, The
document clarifies the position that all changes must be tested formally for significance, and
subsequently which risk assessment processes should be applied, eg CSM REA or
HASAWA. The document can be found here - http://www.rail-reg.gov.uk/upload/pdf/rgd2013-06.pdf
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
14
European Regulation on the Common Safety Methods – Conformity
Assessment
BACKGROUND
The Railway Safety Directive (2004/49/EC) requires that a series of Common Safety
Methods (CSMs) are developed by the ERA to describe how safety levels, achievement of
safety targets and compliance with other safety requirements are assessed in the different
member states.
The CSMs on Conformity Assessment have been developed according to Article 6(3)(b) of
Directive 2004/49/EC (Safety Directive).
The CSM for assessing conformity with the requirements for obtaining railway safety
certificates was published on the 10 December 2010 and came into force across Europe on
3 January 2011. It can be found here: http://www.era.europa.eu/DocumentRegister/Documents/Regulation_1158_2010-CSM_on_Conformity_assessment.pdf
The CSM for assessing conformity with the requirements for obtaining railway safety
authorisations was published on the 11 December 2010 and came into force across Europe
on 3 January 2011. It can be found here: http://www.era.europa.eu/DocumentRegister/Documents/Regulation_1169_2010-CSM_on_Conformity_assessment.pdf
MAIN PROVISIONS
The CSMs on conformity assessment sets out the criteria that National Safety Authorities
(NSAs) will use to assess railway undertakings and infrastructure managers safety
management systems (SMS) and network specific requirements. In order to be granted
access to the infrastructure, a railway undertaking and infrastructure manager must hold a
safety certificate or authorisation respectively. The package will contain the following
elements –

Safety Certification Part A – SMS Assessment Criteria and Procedures;
– This is a standard European Certificate – designed to be transferable between
member states.

Safety Certification Part B – Harmonised Requirements, Assessment Criteria and
Procedures;
– This is a network-specific certificate to be issued to cover the particular requirements
of a member state’s network.

Safety Authorisation – SMS Assessment Criteria and Procedures, network specific
Harmonised Requirements, Assessment Criteria and Procedures;
– This is guidance and criteria for the assessment of safety authorisations for
infrastructure managers.
CURRENT STATUS
The new European assessment criteria can be found here:(http://www.railreg.gov.uk/server/show/nav.1520), and the revised ORR guidance document was published
on
13
April
2011,
which
can
be
viewed
here:
http://www.railreg.gov.uk/upload/pdf/cert_auth_criteria_mainline.pdf
The EC has included the recommendation to introduce single safety certification in the 4th
Railway Package. The ‘general approach’ agreement by Member States foresees ERA
issuing certificates for cross-border operators. Railway undertakings will have the choice of
applying to ERA or the NSA for domestic-only operations.
Railway Safety Legislation Update; No.70; February 2014
15
The assessment and supervision task force on 17-18 September covered:

guidance on the CSM assessment criteria

data exchange and collaboration in supervision between NSAs;

links between the CSM Regulation for Conformity Assessment, the CSM Regulation or
Risk Assessment and the ECM Regulation

coordination issues between RUs and ECMs/keepers
The key point to emerge is the priority given by EC/ ERA to further specification of criteria for
obtaining a safety certificate in order to promote harmonisation
ERA are revising the remit of the assessment and supervision task force in light of EC work
to take forward the single safety certificate

Guidance
ERA has produced draft guidance on issuing safety certificates and authorisations in an
attempt to bring clarity and consistency to the process following some practical problems
and issues raised by some NSAs
Following an initial consultation of the assessment and supervision task force, ERA
produced a second draft of guidance on the issuing of safety certificates and
authorisations. The new draft has been circulated to all NSAs for comment
Note that the guidance, once published, is not legally binding but does set some general
principles around the certification and authorisation processes with which NSAs should
comply.
OTHER INFORMATION
ERA SMS Task Force has created SMS guidance to assist duty holders:
http://www.era.europa.eu/Document-Register/Pages/application-guide-for-SMS.aspx
New SMS web pages from the SMS Task Force are on the ERA Website:
http://www.era.europa.eu/Document-Register/Pages/Welcome-to-the-European-RailwayAgency-Safety-Management-Systems-Wheel.aspx
Application guide for the design and implementation of a Railway Safety Management
System was published in May 2013 and can be found here:
http://www.era.europa.eu/Document-Register/Documents/ERA-GUI-10-2013SAF%20V%201.pdf
New Guidance on the Assessment Criteria for non-mainline safety certificates and
safety authorisations under ROGs
Following changes to The Railways and Other Guided Transport Systems (Safety)
Regulations 2006 ORR has taken the opportunity to revise the assessment criteria for nonmainline safety certificates and safety authorisations. The aim is to reduce duplication by
having criteria that are applicable to both infrastructure managers and transport undertakings
together in one place. ORR hopes to publish new guidance in March 2014.
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
16
European Regulation on the Common Safety Methods – Monitoring
& Supervision
BACKGROUND
The Railway Safety Directive requires that a series of Common Safety Methods (CSMs) are
developed by the ERA to describe how safety levels, achievement of safety targets and
compliance with other safety requirements are assessed in the different member states.
CSMs on Monitoring and Supervision have been developed according to Article 6(3)(c) of
Directive 2004/49/EC (Safety Directive).
The Regulations were published in the official journal on 17 November 2012 and apply from
7 June 2013.
Regulation 1078/2012 CSM on monitoring can be found here:
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:320:0008:0013:EN:PDF
http://eur-
Regulation 1077/2012 CSM on Supervision can be found here:
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:320:0003:0007:EN:PDF
http://eur-
MAIN PROVISIONS
These CSMs define, as far as they are not yet covered by TSIs, methods to check that the
structural subsystems are operated and maintained in accordance with the essential
requirements.
Monitoring - refers to tasks undertaken by Transport Operators to ensure compliance with
their SMS
Supervision - refers to activities by NSAs to check Transport Operators
CURRENT STATUS

Monitoring
RUs, IMs and ECMs who already have methods or tools in place for monitoring may
continue to apply them so long as they are compatible with the provisions of the
Regulation and described in the SMS of the RU/IM or described in the system of
maintenance of the ECM.
The main requirements of the CSMs on Monitoring are that Transport Operators will
need to write strategies and plans for monitoring, to be included in their SMS or be
referenced within the SMS. These should coordinate the various monitoring activities
such as audits, measuring SPIs, inspections and recommendations from accident
investigations. The monitoring should prioritise resources on the basis of risk and should
lead to action plans to do the following where relevant:
–
correctly implement controls
–
improve existing controls
–
add new controls
RSSB has published guidance for industry on the CSM for monitoring which can be
found here:
http://www.rssb.co.uk/NP/Documents/CSM%20Regulation%20A4%20Leaflet.pdf
Railway Safety Legislation Update; No.70; February 2014
17

Supervision
The CSM supervision requires NSAs to have:
1. A strategy that is risk-based and proportionate;
2. Plans that deliver the strategy;
3. A system to make sure that NSA staff are competent to regulate health and safety;
4. Techniques to check the management capability of companies to control risk. ORR
uses the Railway Management Maturity Model (RM3);
5. Arrangements to make sure that an NSA uses knowledge from inspecting a company
when assessing a request for a safety certificate or authorisation;
6. Clear enforcement policies;
7. Co-operation between NSAs to inspect cross-border train traffic in a co-ordinated
manner
A Task Force made up of representatives across the NSA’s has met regularly, to develop
guidance on how the supervision will be conducted. The International Liaison Group of
Government Railway Inspectorates (ILGGRI) has currently held three supervision task force
meetings. ERA has also held a task force and has produced guidance on how an NSA can
use the CSM to implement a supervision system it can be found here:
http://www.era.europa.eu/Document-Register/Documents/ERA-GUI-04-2012SAF_Guidance%20on%20CSM%20Supervision%201%200-clean.pdf
RAILWAY INDUSTRY POSITION
The CSM is seen as high level and fits well with the current practices of the ORR and duty
holders, including ORR’s Risk Management Maturity Model (RM3): http://www.railreg.gov.uk/upload/pdf/management-maturity-model.pdf
OTHER INFORMATION
In August 2013 RSSB published Safety Assurance guidance to assist transport operators
with the CSM for monitoring requirements. The document can be found here http://www.rssb.co.uk/NP/SMS/Documents/50817%20Safety%20Assurance%20Guide%20H
ARDCOPY%20V12%20WEB.PDF
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
18
The Fourth Railway Package
BACKGROUND
The European Commission published proposals for the ‘Fourth Railway Package’ on 31
January 2013.
The package is a complex series of proposals, summarised at:
http://ec.europa.eu/commission_2010-2014/kallas/headlines/news/2013/01/fourth-railwaypackage_en.htm
There are three main components to the technical pillar of the package, where new
proposals for safety legislation are put forward:
•
Interoperability Directive:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0030:FIN:EN:PDF
•
Safety Directive:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0031:FIN:EN:PDF
•
Agency Regulation:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0027:FIN:EN:PDF
MAIN PROVISIONS
The proposals in the Fourth Railway Package focus on four key areas, summarised by the
Vice-President of the European Commission in charge of transport as:

Standards and approvals that work:
The Commission wants to cut the administrative costs of rail companies and facilitate the
entrance of new operators into the market. Under the new proposals, ERA will become a
“one stop shop”, issuing EU wide vehicle authorisations for placing on the market as well
as EU wide safety certificates for operators. Currently vehicle authorisations and safety
certificates are issued by each Member State. The stated expectation is that these
proposed measures would allow a 20% reduction in the time to market for new railway
undertakings and a 20% reduction in the cost and duration of the authorisation of rolling
stock, leading overall, to a saving for companies of €500 million by 2025.

Better quality and more choice through allowing new players to run rail services:
To encourage innovation, efficiency and better value for money, the Commission is
proposing that domestic passenger railways should be opened up to new entrants and
services from December 2019. Companies will be able to offer domestic rail passenger
services across the EU: either by offering competing commercial services or through
bidding for public service rail contracts, which account for a majority (over 90%) of EU
rail journeys and will become subject to mandatory tendering. The stated expectation is
that these proposals would bring clear benefits to passengers in terms of improved
services, increasing choice that, combined with structural reforms, could by 2035
produce more than €40 billion of financial benefits for citizens and companies involved
and would allow provision of up to an estimated 16 billion additional passenger-km.

A structure that delivers:
To ensure that the network is developed in the interests of all players, and to maximise
operational efficiencies, the Commission is proposing to strengthen infrastructure
managers so that they control all the functions at the heart of the rail network – including
infrastructure investment planning, day-to-day operations, maintenance and timetabling.
Faced with numerous complaints from users, the Commission considers that the
infrastructure managers must have operational and financial independence from any
Railway Safety Legislation Update; No.70; February 2014
19
transport operator running the trains. This is essential to remove potential conflicts of
interest and give all companies access to tracks in a non-discriminatory way. It is stated
that, as a general rule, the proposal confirms institutional separation as the simplest and
most transparent way to achieve this. Rail undertakings independent of infrastructure
managers will have immediate access to the internal passenger market in 2019.
However, the Commission can accept that a vertically integrated or “holding structure”
may also deliver the necessary independence, with strict firewalls to ensure the
necessary, legal, financial and operational separation.
Compliance Verification Clause: To safeguard this independence, in view of full
passenger market opening in 2019, rail undertakings forming part of a vertically
integrated structure could be prevented from operating in other Member States if they
have not first satisfied the Commission that all safeguards are in place to ensure a level
playing field in practice, and a fair competition is possible in their home market.

A skilled workforce:
A vibrant rail sector depends on a skilled and motivated workforce. Over the next 10
years, rail will face the combined challenges of attracting new staff to replace the third of
its workforce which will retire, while responding to a new and more competitive
environment. Experience in Member States which have opened their markets shows this
should lead to new and better jobs. Under the EU regulatory framework, Member States
will have the possibility to protect workers by requiring new contractors to take them on
when public service contracts are transferred, going beyond the general EU
requirements on transfers of undertakings.
CURRENT STATUS
In the EU council working group Member States have reached ‘general approach’
agreement on the Interoperability and Safety Directive. Agreement is expected on the ERA
regulation by the end of February 2014. The general approach foresees ERA issuing crossborder vehicle authorisations and cross-border safety certificates. Domestic-only operators
will have a choice of applying to ERA or the NSA. The European Parliament has considered
the European Commission’s original proposals for the technical pillar and has proposed a
number of amendments. The European Commission, Council and European Parliament will
seek to agree a consensus position on the proposals later this year
The European Parliament Transport Committee agreed on the 17 December to adopt the
proposals in the 4th Railway Package including the technical pillar. ERA will become a “onestop-shop” for issuing all vehicle authorisations and safety certificates. Negotiations will
continue between member states through the European Commission.
More resources on the fourth railway package can be found on European Commission’s
website: http://ec.europa.eu/commission_2010-2014/kallas/headlines/news/2013/01/fourthrailway-package_en.htm
RAILWAY INDUSTRY POSITION
In February 2013, the Commons Transport Select Committee launched a short inquiry into
the European Commission’s Fourth Railway Package. The Committee focussed on what
impact the package will have on rail in the UK. Evidence received from a number of parties,
including TFL, Network Rail and freight organisations, is published at:
http://www.publications.parliament.uk/pa/cm201213/cmselect/cmtran/writev/ec/contents.htm.
The CER ERA Steering Unit is currently working on a position paper on proposed
amendments for the Interoperability Directive, Safety Directive, and ERA Regulation, with
Railway Safety Legislation Update; No.70; February 2014
20
the finalisation expected mid April 20141. ATOC are inputting via this process. The DfT
have invited input though their ‘Interoperability Newsflash’ service, and are holding industry
workshops to consider the proposals under the technical pillar of the package. RSSB has
responded directly to this invitation where appropriate (particularly in relation to the
proposals relating to ‘national rules’).
DATE UPDATED
1
February 2014
Paper not published yet
Railway Safety Legislation Update; No.70; February 2014
21
European Directive on the certification of train drivers (Directive
2007/59/EC) - Amendments to Annexes on general professional
knowledge and medical and licence requirements
BACKGROUND
ERA recommended to the European Commission in July 2011 that the Directive be
amended to:

Require that medical requirement in Annex II paragraph 1.2 should state that the vision
for both eyes should be effective. There would no longer be an exemption for anyone
who lost the sight in one eye after becoming a train driver.

Provide more specific details of the requirements for general professional knowledge in
Annex IV.

Require drivers to be able to communicate according to Level B1 of the Common
Framework of Reference for Language specified by the Council of Europe in Annex VI
paragraph 8.
CURRENT STATUS
Updated proposed amendments to these Annexes placed before the European
Commissions’ Railway Interoperability and Safety Committee (RISC) on 30 January 2014
were approved. The only significant change was that drivers should be able to communicate
both orally and in writing.
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
22
Section 3 - UK Legislation (General)
Railway Safety Legislation Update; No.70; February 2014
23
CD241 – Proposals to review HSE’s Approved Codes of Practice
(ACOPs)
BACKGROUND
On 28 November 2011 Professor Ragnar Löfstedt published his independent review of
health and safety legislation ‘Reclaiming health and safety for all’. The review reported that
overall a wide range of stakeholders supported the principles of ACOPs; however, it was felt
by many that there was room for improvement.
In his report Professor Löfstedt made the following recommendation: “HSE should review all
its ACOPs”. The Government accepted this recommendation and asked HSE to review its
52 ACOPs.
MAIN PROVISIONS
ACOPs are not law but do hold a special legal status (quasi-legal). By adhering to the
advice in ACOPs material in relevant circumstances duty holders can be confident they are
complying with the law.
HSE is currently reviewing its guidance and presenting it to users in increasing levels of
detail and specificity. These levels of guidance are arranged as follows:

Level 1 – Health and Safety Made Simple and the revised Essentials of Health and
Safety

Level 2 – The ‘brief guide to…’ hazard based leaflets which explain risks in more detail
and provide information on effective control

Level 3 – Guidance which goes into more detail and often includes case studies. This
includes:
a) Industry Guidance (INDGs) which are industry or topic based guidance leaflets aimed
at employers and workers.
b) Health and Safety Guidance (HSGs) which provide more comprehensive, detailed
advice often including case studies and can be either topic or sector based.

Level 4 – Legal series guidance which present Regulations, AcoP advice and guidance
This review aims to make sure that HSE’s portfolio of guidance is useful and balanced;
making it easier for employers to understand and therefore meet their legal responsibilities.
CURRENT STATUS
HSE has conducted an initial review of 32 of its 52 ACOPs. The remaining 20 ACOPs have
not been reviewed at this time as they are associated with ongoing sector specific
consolidations or other regulatory amendments and will be reviewed in the course of the
delivery of those processes. Only the ACOPs relevant to the rail industry are listed in
the following table:
Railway Safety Legislation Update; No.70; February 2014
24
Section 1 – Proposals to revise, consolidate or withdraw ACOPs; to be delivered by end-2013
The initial review identified 15 ACOPs that HSE proposes to revise, consolidate or withdraw. If agreed these proposals will be taken forward by the review for delivery by
the end of 2013
Consultation
Status
Dangerous substances and explosive atmospheres
L134 Design of plant, equipment & workplaces – Dangerous
Substances & Explosive Atmospheres Regs 2002
L135 Storage of dangerous substances – Dangerous Substances &
Explosive Atmospheres Regs 2002
L136 Control & mitigation measures – Dangerous Substances &
Explosive Atmospheres Regs 2002
5 ACOPS consolidated into a single revised ACOP (L138) published in December 2013
http://www.hse.gov.uk/pubns/priced/l138.pdf
L137 Safe maintenance, repair & cleaning procedures – Dangerous
Substances & Explosive Atmospheres Regs 2002
L138 Dangerous Substances & Explosive Atmospheres Regulations
2002
Legionella
HSE has published four documents to replace the original L8 -
L8 Legionnaires’ disease

L8 ACOP on the control of Legionella in water systems published November 2013
http://www.hse.gov.uk/pubns/priced/l8.pdf

HSG 274 Part 1 Interim Guidance on the control of Legionella in evaporative cooling
systems published November 2013 http://www.hse.gov.uk/pubns/priced/hsg274part1.pdf

HSG 274 Part 2 Interim Guidance on the control of Legionella in water systems published
January 2014 http://www.hse.gov.uk/pubns/priced/hsg274part2.pdf

HSG 274 Part3 Guidance on the control of Legionella in other risk systems published in
November 2013 http://www.hse.gov.uk/Pubns/priced/hsg274part3.pdf
HSE is currently reviewing HSG 274 part 2 and has launched a consultation on it (deadline 2
March 2014). Comments should be sent to legionella.ACOPconsultation@hse.gsi.gov.uk
HSE has also launched a dedicated website containing information on Legionella and how to
control risks from exposure to Legionella from manmade water systems. The website can be
found here http://www.hse.gov.uk/legionnaires/
Railway Safety Legislation Update; No.70; February 2014
25
Consultation
Status
Asbestos
2 ACOPS Consolidated into a single revised ACOP (L143) published in December 2013.
http://www.hse.gov.uk/pubns/priced/l143.pdf
L127 The management of asbestos in non-domestic premises
L143 Work with materials containing asbestos
Gas safety
COP20 Standards of training in safe gas installation
L56 revised to make it clearer what duty holders can do to comply with legal requirements and
to reduce duplication of other more targeted guidance. COP20 is withdrawn and any material it
contains that is still relevant (paragraphs 13 and 14) incorporated within L56. Revised copy
published in November 2013 http://www.hse.gov.uk/pubns/priced/l56.pdf
Hazardous substance
L5 revised and published in November 2013 http://www.hse.gov.uk/pubns/priced/l5.pdf
L56 Safety in the installation and use of gas systems and appliances
L5 The Control of Substances Hazardous to Health Regulations 2002
Approved Code of Practice and Guidance
Workplaces
L24 Workplace health, safety and welfare
Management of health and safety
L21 Management of health and safety at work
L24 revised to make it clearer what duty holders must do to comply with legal requirements and
reduce duplication in the ACOP of duties covered in the legislation. Revised copy published in
November 2013 http://www.hse.gov.uk/pubns/priced/l24.pdf
This has now been withdrawn and replaced with more specific, updated guidance. See text
after this table for more information.
Section 2 – Proposals to make minor revisions or no changes – to be delivered by end-2014
The initial review identified 15 ACOPs where HSE proposes to make minor revisions or no changes. Subject to the outcome of the consultation, these changes will be
taken forward separately to the review for delivery by end-2014. All are CD241 unless stated
http://consultations.hse.gov.uk/consult.ti/cd241/viewCompoundDoc?docid=66420&partid=67572&sessionid=&voteid=&clientuid=194529
Consultation
Proposal and HSE consultation page
Consultation
Status
Work equipment
L22 Safe use of work equipment
L112 Safe use of power presses
CD241 - Retained these three ACOPS, revise and update their contents and
make it clearer what dutyholders can do to comply with legal requirements.
Not open yet
L114 Safe use of woodworking machinery
Railway Safety Legislation Update; No.70; February 2014
26
Consultation
Proposal and HSE consultation page
Lifting equipment
CD241 - Retained and revised, contents update their contents and make it
clearer what dutyholders can do to comply with legal requirements.
Not open yet
CD241 - Retained and revised, contents update their contents and make it
clearer what dutyholders can do to comply with legal requirements.
Not open yet
CD241 - ACOP is retained and minor amendments made to make it easier for
dutyholders to understand what they can do to comply with legal requirements.
Not open yet
CD241 - ACOP is retained and amended to reflect changes to relevant
legislation, remove material that duplicates guidance now made available on
the HSE website and make it clearer what dutyholders can do to comply with
legal requirements where required.
Not open yet
CD241 - It is proposed that no changes are required for this ACOP at this time.
Not open yet
L113 Safe use of lifting equipment
Confined spaces
L101 Safe work in confined spaces
Pressure systems
L122 Safety of pressure systems
Hazardous substances
L132 Control of lead at work
Worker involvement
Consultation
Status
L146 Consulting workers on health and safety
Annex 1 – ACOPs to be revised or withdrawn
Consultation
Status
Lift trucks
L117 has been incorporated into HSE guidance HSG6 - Safety in working with lift trucks
http://www.hse.gov.uk/pubns/priced/l117.pdf
L117 Rider-operated lift trucks: Operator training
Chemicals
L130 was withdrawn from use in January 2014.
L130 The compilation of safety data sheets
Railway Safety Legislation Update; No.70; February 2014
27
Annex 2 – ACOPs not reviewed due to ongoing sector specific consolidations of legislation or other regulatory amendments
20 ACOPs have not been reviewed at this time as they are associated with ongoing sector specific consolidations or other regulatory amendments and will be reviewed in
the course of the delivery of those processes.
Consultation
Proposal and HSE Consultation page
Consultation
status
No information available
N/A
Consultation
Proposal and HSE Consultation page
Docks
COP25 Safety in docks
The Docks Regulations 1988 will be revoked on 6 April 2014. This Approved
Code of Practice (ACOP), COP25 Safety in docks, will also be withdrawn on
that date.
COP25 Safety in docks applies up to and including 5 April 2014. A new ACOP,
L148 Safety in docks, will apply from 6 April 2014.
Consultation
status
Explosives
Consultation CD256 closed. Details of the proposal can be found here
L139 Manufacture of storage of explosives
http://www.hse.gov.uk/consult/condocs/cd256.htm
Construction
L144 Managing health and safety in construction
N/A
24/09/2013
Flammable substances
L93 Approved tank requirements – The provisions for bottom loading
and vapour recovery systems of mobile containers carrying petrol
L133 Unloading petrol from road tankers
Consultation CD264 closed, Details of the proposal can be found here 07/02/2014
http://www.hse.gov.uk/consult/condocs/cd264.htm
COP6 Petroleum-spirit (plastic containers) Regulations 1982
Radiation
No information available
N/A
L121 Work with ionising radiation
First Aid
See CD248 and CD251
L74 First aid at work
L74 was reissued on 1 October 2013
Railway Safety Legislation Update; No.70; February 2014
N/A
28

L21 Management of health and safety at work
HSE has updated its web-site pages on managing health and safety and has published a
new version of its guidance document Managing for Health and Safety (HSG65). This
can be found here: http://www.hse.gov.uk/pubns/books/hsg65.htm
Management for Health and Safety (HSG65) The Guidance no longer refers to the
POPMAR management model, it now explains the Plan, Do, Check, Act approach and
shows how it can help you achieve a balance between the systems and behavioural
aspects of management.
Other related documents are :
-
Health and Safety Made Simple; which can be found here:
http://www.hse.gov.uk/pubns/indg449.pdf
-
The guidance previously branded as “Essentials”;
http://www.hse.gov.uk/toolbox/index.htm
-
The Five Steps to Risk Assessment;
http://www.hse.gov.uk/pubns/indg163.pdf; and
which
which can be found here:
can
be
found
here:
OTHER INFORMATION
The ACOP review process is quite a large fluid one with updates and consultations being
issued regularly. We will continue to update the RSLU on the changes made, but as the
RSLU is only published quarterly we recommend that readers subscribe to the HSE update
service http://press.hse.gov.uk/subscribe/ to up to date on progress.
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
29
CD243 – Proposals to simplify and clarify Reporting of Injuries,
Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR)
reporting requirements.
BACKGROUND
Following the recommendations made from the Lofstedt review of Health & Safety
Regulations in November 2011 the HSE led a review of the Reporting of Injuries, Diseases
and Dangerous Occurrences Regulations 1995 (RIDDOR).
The aim was to clarify and simplify RIDDOR and provide a reporting mechanism which is
appropriate for enforcing authorities’ current and anticipated needs.
The HSE consulted on the proposals and the outcome of the consultation can be viewed at:
www.hse.gov.uk/aboutus/meetings/hseboard/2013/300113/pjanb1304.pdf
The impact assessment of the consultation was published in May 2013 and can be found
here http://www.hse.gov.uk/consult/condocs/cd243-update.pdf
MAIN PROVISIONS
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013
(RIDDOR 2013) came into force on 1 October 2013 and can be found here:
http://www.legislation.gov.uk/uksi/2013/1471/contents/made.

RIDDOR 2013 replace the 1995 Regulations and, among other things:

remove the requirement for suicides to be reported to ORR;

replace the classification of ‘major injuries’ to workers with a shorter list of ‘specified
injuries’;

simplify the list of dangerous occurrences; and

reduces the list of 47 reportable occupational health conditions to eight groups of short
latency occupational diseases.
CURRENT STATUS
HSE has published guidance to RIDDOR 2013, which can be found here:
http://www.hse.gov.uk/riddor/index.htm
RAILWAY INDUSTRY POSITION
RSSB are currently developing options to change SMIS to automatically report reportable
injuries to the revised definitions contained in the revised RIDDOR regulations. A revised
version of SMIS containing the revised definitions is due for release by the end of March
2014 and will coincide with ORR update of their accident reporting system.
It should be noted that the change to the definitions in RIDDOR does not impact upon the
mandatory requirement for all Railway Group Members to report into SMIS all injuries to
workforce, passengers and public, as defined in Railway Group Standard GE/RT8047
OTHER INFORMATION
On the 1 November 2013 ORR published rail-specific guidance to RIDDOR 2013, which can
be found here: http://orr.gov.uk/__data/assets/pdf_file/0010/2332/riddor-guidance.pdf .This
includes a new reporting mechanism, which removes the monthly ‘bulk’ reporting of certain
dangerous occurrences.
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
30
Enforcement procedures against drink drivers and other offences
BACKGROUND
In June 2010 Sir Peter North wrote a report on the review of drink and drug driving law, and
in November 2010 the Transport Select Committee wrote a report on Drink and Drug Driving
Law. The Government responded to both reports in March 2011 proposing legislative
changes on drink and drug driving1.
MAIN PROVISIONS
The legislative changes proposed in this consultation relate to Great Britain. The proposals
are consistent with the devolution of the drink drive limit in Scotland, through the Scotland
Act 2012.
The Government sought a view on the following proposed changes –

The withdrawal of the ‘statutory option’;2

Changes as to when preliminary breath tests are needed;

Changes to the testing procedures in hospital;

Changes to who can assess if someone is under the influence of drugs;

Amendments to the regimes for aviation, rail and shipping which mirror the road regime.
CURRENT STATUS
The results from the consultation were released on 24 July 2013. The original consultation
paper
and
full
outcome
can
be
found
here:
https://www.gov.uk/government/consultations/enforcement-procedures-against-drink-driversand-other-offenders.
The consultation took the form of a questionnaire and composed of 10 questions. These
were:
Q1-4 Removal of the statutory option and the retention of the current blood to breath ratio.
Q5
Changes to when preliminary breath tests are required outside police stations and
hospitals.
Q6
Allowing registered healthcare professional to take blood samples from suspected
drink and drug drivers.
Q7
Allowing registered healthcare professionals to provide an assessment whether a
condition is due to the presence of drugs in the body.
Q8
Whether the above proposals should be implemented in other transport sectors, e.g.
rail, aviation and shipping.
Q9
Whether or not to extend post court rehabilitation schemes to other offences
Q10 Respondents to agree to evaluation of the use of extended driving tests and other
competence tests with a view to considering their use more widely for offences.
From the rail sector, Eurostar and RSSB responded to this consultation (questions Q1-4, Q5,
Q6 and Q8 only) – see link above for detailed response to each question.
The main changes would be to the Road Traffic Act 1988 – repeal Sections 8(2), 8(2A), 8(3) and
change Sections 8(1)
2 The current prescribed limit for driving with excess alcohol is expressed in terms of alcohol
concentration in breath, blood and urine. The statutory option allows suspects whose breath alcohol
concentrations readings do not exceed 50 microgrammes of alcohol per 100 microgrammes of breath
(the prescribed limit is 35) to ask for a blood or urine test (named the statutory option)
1
Railway Safety Legislation Update; No.70; February 2014
31
An impact assessment was conducted in October 2012 researching into the two possible
outcomes, these being:

Option 1 – removal of the statutory option without any changes in prescribed limits;

Option 2 – removal of the statutory option with revised prescribed limits for blood and
urine based on a different implied blood to breath alcohol concentration ratio.
The summary of the preferred option was to withdraw the statutory option, without changing
any of the prescribed limits for drink-driving (option 1). The preferred timing would be at a
similar time to the introduction of mobile evidential breath testing equipment in 2014. This is
dependent on parliamentary time being found for legislative changes.
The legislative changes would be likely to be commenced shortly after the Royal Assent of
the relevant legislation. The government is working with the Association of Chief Police
Officers (ACPO) to ensure the timing of implementation is co-ordinated with the necessary
changes to police procedures. It is also considering the implications for the far rarer police
testing arrangements in the aviation, rail and shipping sectors.
Post-legislative scrutiny requirements for primary legislation require a review five years after
the relevant Act is passed. Drink drive casualties, proceedings and breath tests are all
monitored continuously with annual statistics being produced. The DfT would propose to
use these and work with the CPO to monitor the effects of removing the statutory option and
introducing mobile evidential breath testing equipment, when the changes are made and
after two and five years.
This policy is next set to be reviewed in December 2016.
RAILWAY INDUSTRY POSITION
RSSB will continue to monitor this legislative change and update this paper as and when
new information is received.
OTHER INFORMATION
DATE UPDATED
October 2013
Railway Safety Legislation Update; No.70; February 2014
32
Section 4 - UK Legislation (Railways)
Railway Safety Legislation Update; No.70; February 2014
33
Level crossing legislation
BACKGROUND
Following a joint submission by ORR and DfT. The Law Commission, together with the
Scottish Law Commission, agreed to carry out a review of the law relating to level crossings
as part of the Law Commission’s Tenth Programme of Law Reform. The project covered
level crossings in the GB rail network. The Law Commission is a statutory independent body
whose role is to keep the law under review and recommend reform where needed.
MAIN PROVISIONS
The Law Commission and the Scottish Law Commission have carried out a project which
examines the legal framework relating to level crossings, with a view to simplify and
modernise. The legislation governing level crossings is complex and antiquated, much of it
dating back to the nineteenth century. At present, the provisions relating to level crossings
are scattered amongst legislation relating to different areas of law. With the legislation
currently contained in public Acts, private special Acts, bye-laws or subordinate legislation,
there is a requirement to attempt to consolidate the law in this area.
This consultation proposes a complete overhaul of existing level crossings legislation, and in
particular it will look at:

The creation of level crossings

Rights of way and access issues

Current Regulation of level crossings

Criminal offences

Level crossing closures

Signs and highway code
CURRENT STATUS
On 25 September 2013 the law commission published a report which can be found here
http://lawcommission.justice.gov.uk/docs/lc339_level_crossings.pdf. The report explains and
sets out recommendations, together with a draft Level Crossings Bill, draft Level Crossing
Plans Regulations, an analysis of consultation responses and an economic impact
assessment. The recommendations would:

Create a new, more streamlined procedure to close individual level crossings where it is
in the public interest to do so.

Bring safety regulation entirely under the umbrella of the Health and Safety at Work etc
Act 1974.

Provide tools to support this under health and safety regulations, including level
crossings plans, enforceable agreements between railway operators and other duty
holders, and a power for the Secretary of State to issue directions if necessary.

Improve the balance of convenience to all level crossing users by imposing a statutory
duty upon railway and highway operators to consider the convenience of all users when
carrying out their obligations in respect of level crossings.

Improve efficiency and level crossing management by imposing a statutory duty on
highway and railway operators to make arrangements to co-operate with each other in
carrying out their obligations in respect of level crossings.

Provide clarity in certain areas of land law about the position of statutory level crossings.

Disapply statutory provisions relating to safety at level crossings, which have been
superseded by more recent law or are otherwise obsolete.
Some of the Commissions’ original proposals were dropped following consultation, for
example the introduction of specific criminal offences to address level crossing misuse.
Railway Safety Legislation Update; No.70; February 2014
34
This report concludes the Law Commission level crossings project and it is now for Ministers
to decide how to implement its recommendations.
RAILWAY INDUSTRY POSITION
RSSB, Network Rail and ATOC responded to the consultation process.
OTHER INFORMATION
The Commons Transport Select Committee has held an inquiry into safety at level crossings.
This inquiry was outlined in the committee’s recent report which set it out its future work
programme
for
2013-14.
The
report
can
be
viewed
here
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmtran/438/438.pdf
The Committee’s specific report following the level crossings inquiry is in preparation.
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
35
Section 5 - Other railway related consultations
Railway Safety Legislation Update; No.70; February 2014
36
ORR’s Approach to Transparency
BACKGROUND
Openness and Transparency are both crucial elements in delivering the Governments’
objectives for strengthened public accountability; public service improvement; and
encouraging wider economic growth through the development of products and services
based on public sector information. Transparency is also a key factor in the Governments’
strategy, which was laid out in its document ‘Better Choices: Better Deals’. In support of this
strategy, the DfT published a Command Paper in March 2012 called ‘Reforming our
Railways: Putting the Customer First’: http://www.dft.gov.uk/publications/reforming-ourrailways/, which details how this kind of approach could be used within the rail industry.
The ORR has supported this view of transparency in the railways and ‘believes it has a vital
role to play in driving the behavioural changes necessary for industry reform, delivering
better value for money and delivering a customer focussed industry’. In May 2011 the ORR
launched the National Rail Trends (NRT) Portal, which provides the public access to a wide
variety of rail statistics. The NRT has a report wizard which enables users to query detailed
data and see key data via tables and charts.
MAIN PROVISIONS
The ORR has published a consultation document to gain views on the ORR’s approach to
transparency. They believe transparency is important in driving the behavioural changes
necessary for industry reform, delivering better value for money and a more customer
focussed industry.
The ORRs vision for the development of more transparency in the rail industry is:

Hold the sector to account by reputation in absolute terms and by comparison;

Hold ORR to account in how they discharge their statutory responsibilities, in the
substance of their decisions and what they spend;

Exposure where the industry spends the money it receives and on what, to enable
passengers, funders and taxpayers to consider whether they are getting value for money
and to support informed choices about future spends including at local level;

Enable passengers and freight customers to exercise choice where available and to
match the service or product to their needs; and

Stimulate the design and introduction of new consumer led services and products by
third party developers with potential downstream commercial applications.
CURRENT STATUS
The ORR has published a consultation document which describes why they believe
transparency is so important, and outlines the current focus and activities of ORR and the
industry. They are seeking views on how they should go about assessing the risks and
benefits of more transparency and what factors they should take into account, including how
we should measure whether their objectives are being achieved.
The consultation closed on 19 October 2012 information on the responses received can be
found here - http://orr.gov.uk/news-and-media/email-alerts/2012/regulator-welcomesrailways-transparency-push
ORR held a stakeholder workshop on 10 December 2012, which was attended by Colin
Dennis of RSSB and other industry stakeholders. This conference discussed what
transparency means in the context of the railways and how they can work together to deliver
the benefits that transparency can bring to passengers, taxpayers and the industry.
Railway Safety Legislation Update; No.70; February 2014
37
RAILWAY INDUSTRY POSITION
RSSB responded to the consultation.
OTHER INFORMATION
ORR is considering its approach to transparency and will publish a statement shortly.
DATE UPDATED
February 2014
Railway Safety Legislation Update; No.70; February 2014
38
Section 5 – News
Railway Safety Legislation Update; No.70; February 2014
39
News
New Asbestos Exemption for the Placing on the Market of
Railway Vehicles and Components
ORR has been given new enforcement powers and is now able to
grant exemptions for the continued supply of second-hand railway
vehicles containing asbestos under the recently amended REACH
Enforcement (Amendment) Regulations 2013.
REACH Enforcement (Amendment) Regulations 2013 is a European
regulation which deals with the Registration, Evaluation.
Authorisation and Restriction of Chemicals.
ORR have taken the proactive step of authorising a generic
exemption allowing the controlled supply of older (pre-2005) railway vehicles and
components which contain asbestos. The exemption is wide in scope and applies to all
railway vehicles which are subject to ORR’s health and safety enforcement. This includes
mainline railways, heritage systems, London Underground, Tramways, light rail systems and
other types of people mover. ORR intends to use these new enforcement powers to
encourage further improvement in the management of risks from asbestos in rail vehicles.
The
exemption
can
be
found
here
http://orr.gov.uk/__data/assets/pdf_file/0010/10612/asbestos-exemption-no1-2014.pdf
.
Additional
guidance
on
the
exemption
can
be
found
here
http://orr.gov.uk/__data/assets/pdf_file/0009/10611/asbestos-exemption-rgd-2014-01.pdf
Anyone wishing to take advantage of the new exemption must be able to demonstrate that
the conditions in the exemption are being met. These conditions require proper assessment
and adequate control of risks to health; removal of asbestos, or substitution with nonasbestos parts, where reasonable; and accurate records of any asbestos in the vehicle or
component before it can be placed on the market. Anyone involved in the supply chain for
second-hand rolling stock containing asbestos should consult ORR’s web site for more
details - http://www.orr.gov.uk/what-and-how-we-regulate/health-and-safety/guidance-andresearch/worker-safety/asbestos
ORR’s Proposals for updating and consolidating old Railway Safety Legislation
ORR is hoping to consult soon on proposals to streamline three
sets of out-dated legislation into one new statutory instrument
covering train protection systems, the prohibition of Mark 1 rolling
stock & means of communication for passengers in an emergency.
This project forms part of the Government’s Red Tape Challenge which looked to remove or
improve legislation wherever possible. Please check for updates on the ORR website.
Construction Design and Management Regulations
Changes to regulations and ACoP to be consulted on
2007;
HSE is expected to consult in the near future on proposals for
changes to the Construction Design and Management Regulations
2007 and the associated ACoP”. There is no date set for this yet but
the proposals are currently undergoing the usual government
clearances before publication.
Railway Safety Legislation Update; No.70; February 2014
40
HSE overhauls working at height guidance
HSE has overhauled its online guidance covering
working at height and has published a new microsite http://www.hse.gov.uk/work-at-height/index.htm
The new microsite
 Provides simple advice about do's and don'ts when
working at height to ensure people are clear on
what the law requires
 Busts some of the persistent myths about health
and safety law, such as the banning of ladders
when they can still be used
 Offers targeted advice to helping business in
different sectors manage serious risks sensibly and
proportionately
 Helps workers to be clearer about their own
responsibilities for working safely
A brief guide to Work at Height, INDG401 has also been updated. The
guide describes what employers need to do to protect their
employees from falls from height and it can be found here http://www.hse.gov.uk/pubns/indg401.pdf
Guidance on the safe use of ladders INDG455
has also been updated. This leaflet replaces
INDG402 Safe use of ladders and stepladders:
An employers’ guide, INDG403 A toolbox talk
on leaning ladder and stepladder safety and
INDG405 Top tips for ladder and stepladder
safety. The document can be found herehttp://www.hse.gov.uk/pubns/indg455.pdf
European Rail Agency (ERA) have updated their SMS Guidance
ERA have updated its guidance on the
construction, design, implementation and delivery
of a structured and organisation-wide railway
SMS. The update includes two new application
guides on Human Factors and Safety Culture
(produced by RSSB)
The mini-site contains an interactive SMS wheel
that enables users to navigate through the whole
set of documents developed by the ERA together
with relevant stakeholders. Its aim is to facilitate
the compliance with the legal requirements that
are in force from the Railway Safety Directive and
other railway safety related legislation. Further
information
can
be
found
at
http://www.era.europa.eu/tools/sms/Pages/default.
aspx
Railway Safety Legislation Update; No.70; February 2014
41
Report Into the effectiveness of The Health and Safety (Offences) Act 2008 published
On the 16th January the Department of Work and Pensions
published its report into the effectiveness of The Health and
Safety (Offences) Act 2008. The report compared the four
years before the Act was introduced with the four years
immediately afterward, the keys findings are 
The number of health and safety offences heard in the
courts has dropped by 9% from 3,338 to 3,042

The proportion of health and safety offences sentenced
in the lower courts has increased by 14% from 72%
to 86%

The number of health and safety offences heard in
court that attracted a custodial sentence (or equivalent)
increased by 283% from 78 to 221

The average fines imposed by the courts for breaches
of health and safety Regulations have increased by 60% from £4,577 to £7,310

The average fines imposed by the courts for breaches of health and safety Acts have
increased by 9% from £10,908 to £11,920

The average fines imposed by the courts for breaches of health and safety Acts and
Regulations have increased by 25% from £13,334 to £16,730

Prior to the Act being introduced no fines of over £5,000 were given to offences heard in
the lower courts, since the Act was introduced 346 offences have attracted fines in
excess of £5,000 in the lower courts
The full report can be found here – https://www.gov.uk/government/publications/health-andsafety-act-2008-post-legislative-scrutiny-memorandum-16-january-2014
Key Diary Dates
Date
Item
5 April 2014
HSE Health and Safety law poster 1999 version must be replaced by the 2009
poster or leaflet. The new version can be ordered from http://www.hse.gov.uk/pubns/books/lawposter.htm
29 Oct 2018 Train Driving Licences and Certificates Regulations 2010 (TDLCR) –
Requirement for existing drivers (cross-border and domestic) to hold licences
and certificates comes into effect http://www.rail-reg.gov.uk/server/show/nav.2447
Court Cases
None
Railway Safety Legislation Update; No.70; February 2014
42
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